IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Joan Lee Ross, et al., :

Plaintiffs, :

v. : Case No. 2:12-cv-743

Home Depot USA Inc., et al., : 

 Magistrate Judge Kemp

 Defendants. :

 

OPINION AND ORDER

Joan Lee Ross tripped and fell over an extension cord at a

Home Depot store in June, 2012. She filed this action the

following month seeking to recover compensatory damages on a

theory of negligence and premises liability. 

The case is now before the Court to consider a motion filed

by Ms. Ross for attorneys’ fees incurred in connection with a

prior discovery motion. For the following reasons, the Court

will defer action on the motion pending further filings.

In an Opinion and Order filed on October 25, 2013, the Court

granted Ms. Ross’s motion to compel discovery and directed Home

Depot to produce, for an attorneys’ eyes only review, a document

titled “Home Depot Asset Protection Guide.” It did so based on

an in camera review of that document, which showed that there

were a fair number of arguably relevant portions of the document

which Home Depot had not produced, and based on the fact that

Home Depot provided no evidentiary support for its claim that the

contents of the Guide deserved trade secret protection. Ross v.

Home Depot USA, Inc., 2013 WL 5775300 (S.D. Ohio Oct. 25, 2013). 

Confidentiality and lack of relevance were the two reasons Home

Depot had advanced for not producing the document in its

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entirety, or any additional pages from it, in response to the

motion to compel. 

After reviewing the Guide, Ms. Ross’s counsel concluded that

at least ten pages of the document referred either to the use of

extension cords or to other relevant customer safety protocols. 

In her motion for attorneys’ fees, she argues that “given the

clear relevance of these documents, and the complete lack of

support for the assertion of ‘trade secret protection’ ... it

cannot be stated that Defendant’s resistance to the disclosure of

these documents was ‘substantially justified.’” Motion for

Attorneys’ Fees, Doc. 55, at 3. That, of course, is the standard

to be applied under Fed.R.Civ.P 37(a)(5)(A)(ii) to determine

whether the Court may choose not to impose an otherwise mandatory

award of costs and fees incurred by a party who has successfully

moved to compel discovery. Ms. Ross seeks fees in the amount of

$1,755.00 representing 6.5 hours of attorney time, billed at

either $250.00 or $350.00 per hour.

Home Depot filed a brief response to the motion arguing that

it made a good faith objection to the production of the entire

Guide, based on the irrelevance of much of the document, and that

Ms. Ross did not demonstrate with specificity how the additional

pages of the Guide referred to in her motion actually relate to

the issue in this case. It also asserts - again, without any

factual support - that the Guide contains “confidential and

proprietary information Home Depot sought to protect from

disclosure in the marketplace.” Response to Motion for

Attorneys’ Fees, at 3. Consequently, it contends that its

opposition to producing the Guide or those portions of it was

substantially justified. It made no argument as to the

reasonableness of either the hours expended or the billing rates

of the attorneys who worked on the motion to compel.

In reply, Ms. Ross reiterates her arguments, noting

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additionally that the Court, based on its in camera review,

located pages in the Guide which were relevant, and pointing out

that Home Depot has never supported its claim of confidentiality

with any evidence, even as part of its opposition to the motion

for attorneys’ fees. The disputed pages of the Guide were not

attached to the reply; however, they are part of the record in

this case since the entire Guide was previously filed under seal

(Doc. 40). 

The justification that the pages in question are deserving

of some type of protection is still totally unsupported by

anything in the record. Further, the proper way to have handled

that matter, especially given that Ms. Ross is not a competitor

of Home Depot, would have been to produce any relevant portions

of the Guide under the already-existing protective order (Doc.

17). Home Depot did just that with respect to the three pages it

produced. The Court sees nothing about any other pages of the

Guide which would appear to be more confidential or sensitive

than the ones produced subject to the protective order, so Home

Depot’s refusal to produce other relevant pages of the Guide (if

there were any) on grounds of confidentiality cannot, under these

circumstances, be viewed as substantially justified.

That leaves the question of relevance. As the Court

understands the record, Home Depot voluntarily produced pages 56,

86 and 88 of the Guide, objecting to any other production (or

even inspection) on relevance grounds. Ms. Ross claims that the

documents numbered HD 1023-1025, 1035, 1076-77, 1079, 1106, 1108,

and 1139 are all relevant. Although those pages are, presumably,

included within the document which Home Depot filed with the

Court, apparently the numbering has changed. The copy of the

Guide in the Court’s file has pages numbered from HD 0841 to HD 

1003. The Court therefore cannot tell which pages Ms. Ross is

actually referring to, nor can it make a determination of whether

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the withholding of those pages was substantially justified.

Under these circumstances, the Court cannot make a proper

ruling on the motion. It therefore defers any ruling until it

has been advised of which pages of the Guide Ms. Ross has

identified in her motion. Identifying them by the actual page

numbers found in the Guide rather than by Bates numbers will

suffice. Ms. Ross may submit that information within seven days. 

The Court also notes that the Guide was only one of several

subjects addressed in the motion to compel, and that if the Court

awards fees, it would be inclined to reduce the claimed amount

for that reason. The parties may consider this information in

determining if they will continue to move forward with the fees

issue. 

 

/s/ Terence P. Kemp 

United States Magistrate Judge

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